(Originally appeared in the August 2013 issue of Mind, Body & Soul in The Jewish Press)

By Martin E. Friedlander, Esq.

“Why is Moishy going to McDonald’s?” Rivkie asks her daddy.

“Why does Mommy remove her shaitel (head covering) and wear short skirts when she leaves the house and changes back when she returns?”

“Was that Daddy I saw driving on Shabbos?”

“Simcha said that his father took him to a movie theater and that it is okay not to wear a yarmulka.”

“Mommy said the cat turned on the television on Shabbos and that makes it okay to watch TV.”

The questions and statements presented above are not fictional or from a novel, but are actually taken from true case scenarios. Children who were raised by religious families in religious environments are subjected to a degree of psychological torment when confronted by unknown environments due to one parent’s decision to longer live a religiously observant lifestyle.

Occasionally, we hear or read about cases where religious children are being forced to live with a non-Jewish or non-religious parent. Yet as a society, we must examine the root of the problem: Why are so many young adults deciding they no longer want to be religious after marrying and starting a family? The individuals choosing an irreligious or less religious lifestyle have been raised in religious homes and attended yeshiva, beis midrash or seminary. The parties involved in these cases can be found spending their days in both secular environments as well as within the walls of the beis midrash. Is there an underlying factor? Is this trend more prevalent than 10, 20, or even 30 years ago? I think the answer to the question presented is unequivocally yes. The cause, however, is clearly an issue of debate.

The dynamics arising from these cases vary greatly. In some cases, there is a situation where one spouse is no longer observant. There are also some spouses who have changed their level of religious observance from the time they were married. Consider a situation where a Chassidic couple got married. Now, one spouse no longer desires to follow Chassidic tradition. Does the Chassidic spouse have the right to compel the ex-spouse to follow Chassidic customs (which they followed while married) while raising their children? If the ex-spouse is still shomer Shabbos but no longer wants to abide by Chassidic customs and dress, can Chassidic customs be coerced upon the spouse while the children are in his/her custody? What about the effect it has on the children and the confusion it causes?

There was a case that I was involved with in which the party’s agreement called for the children to attend a Chassidic yeshiva. One parent, in an effort to cause a rift, transferred the children from a Ger yeshiva that the children were attending, to a Lubavitch yeshiva. Only someone with knowledge of the difference between a Ger yeshiva and a Lubavitch one would understand the significance and the intent of the transfer. Imagine the impact this drastic change has on a child’s thought process and his feelings towards religion.

Secular courts can enforce provisions from an agreement if they are specifically enumerated in a party’s agreement, such as:

“In the event either party attends religious services at a synagogue with child, said synagogue shall be an Orthodox synagogue as defined by the regulations of the union of Orthodox Congregations such as having a valid mechitzah.”

HOW THE SECULAR COURTS ADDRESS THIS MATTER:

In the seminal case of Park Slope , the court indicated that a secular court cannot decide or interpret areas of religious law. Subsequently, this case has been used by many matrimonial judges who will use this as a basis for not involving the court in religious disputes. In the case of Park Slope, the Court of Appeals (the highest court of the state) stated that United States Constitution prohibits the courts from deciding disputes that would require them to decide religious doctrine. The court cannot decide the meaning of the words or phrases such as “tenants of Orthodox Judaism,” because it would require the court to decide what Orthodox means.

In light of the children’s upbringing, the court looks at the lifestyle and religious choices that they have been taught. A case in Rockland County involved a Chassidic observant father and the mother who was religious, but not Chassidic. The court further stated that the custodial parent determines the appropriate level of religious beliefs, while the non-custodial parent must honor those religious beliefs and practices during their visitation time. In the United States, there is a separation of church and state.

In the widely publicized case of Lightman v. Flaum , it was explained that “civil courts are forbidden from interfering in or determining religious disputes. Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct… while interfering with the free exercise of the opposing faction’s beliefs.” The custodial parent (if awarded sole custody) has the right to determine a child’s religious upbringing and training.

Contractual obligations are of utmost importance in ensuring that a child’s religious upbringing is in conformity with halacha to insure future adherence as it relates to the child.

A custody case, decided on November 24, 2010, directly addresses the issues discussed herein. A rabbi testified to the differences in lifestyle and religious beliefs between the two parties. The father’s definition of what qualifies as kosher was more stringent than the mother’s definition. Both parents differed in opinion regarding whether or not the aforementioned preferences are within the realm of the faith and practices.

The daughter felt more comfortable with her father’s lifestyle and wanted to remain living with him, as well as to spend all Jewish holidays with her father. Her mother also felt a strong need to interact with her child, despite her decision to lead a more “modern” lifestyle as compared to her daughter. The secular court was confronted with dealing with a Chassidic parent and a modern yet observant one, where each one believed that his/her own practices were the proper way to observe religion.

The court stated that the father, as custodial parent, is the final arbiter of the daughter’s level of religious observance and devised a decision along those parameters.

A court can regulate a non-custodial parent’s conduct during visitation to insure the integrity of the child’s level of religious observance during visitation as dictated by the custodial parent.

This decision is quite comprehensive, addressing issues of cholov yisrael, yichud, internet usage, library books, etc. This court was very intuitive in drafting an order which is to main a regime for the daughter who wanted to follow a Chassidic lifestyle. This case is far from the norm in that the court took the time to listen and address all these issues.

These conflicts are affecting the children born out of these marriages. The psychological impact arising out of these issues is great, and protection as described herein must be considered in any agreement as such cases are on the rise.

Martin E. Friedlander P.C. is a firm specializing in matrimonial matters in both secular courts and Beis Din. Martin E. Friedlander, Esq. is a musmach of Yeshiva Torah Vodaath, received Semicha (Rabbinical Ordination) from Rav Pam, zt"l, and is a Talmud of Rav Yisroel Belsky, Shlita. He is a graduate of Brooklyn Law School and has lectured extensively on matrimonial matters. He is also the former Co-Chair of the Family Law Section of the Brooklyn Bar Association.

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